1. To: Gennelle Franklin
From: L. Chris Skufca
Re: Enforcement of Health Code and Designated Homeless Feeding Locations
Issue(s):
1. Whether the enforcement of generally applicable licensing and health code regulations against
private individuals who feed the homeless, as well as designating specific food distribution
locations are constitutionally permissible restrictions under the First and Fourteenth
Amendments of the U.S. Constitution?
2. Whether the City of Philadelphia will be shielded from liability for the actions of private
individuals if it provides facilities to accommodate large group feedings of the homeless?
Brief Summary:
1. Most likely Yes. The free exercise of speech, assembly and religion are not absolute rights.
These rights may be circumscribed by valid time, place and manner restrictions. To be
constitutionally valid, a time, place and manner restriction must be (1) content neutral,
(2) narrowly tailored to serve a significant governmental interest, and (3) leave open ample
alternative channels for communication. In addition, permit schemes which infringe upon
expressive activity cannot be used to target disfavored viewpoints or unpopular groups.
Here, Philadelphia’s general enforcement of the health code is most likely a permissible time,
place and manner restrictions because (1) uniform enforcement of existing licensing and heath
code requirements are a content neutral regulation of conduct, not speech. The health regulations
were not specifically designed to target expressive or religious conduct, but are generally
applicable to any individual who seeks to engage in distributing food to the public; (2) the City
has a significant governmental interest in promoting public health and safety, preventing public
nuisances and preserving the aesthetics and accessibility of public parks and sidewalks; and (3)
the establishment of designated sites to feed the homeless meets these interests while leaving
open ample alternative channels for the expressive activity. Multiple feeding locations could
only amplify accessibility.
2. Most Likely Yes. The City of Philadelphia will most likely be shielded from municipal
liability for the actions of private individuals if it limits its involvement to providing designated
facilities to accommodate voluntary homeless feedings. Under the Compulsion Doctrine, the
decisions of private actors can be imputed to the state whenever a regulatory relationship exists
and the state exercises coercive power or significantly encourages the action through its policies.
As such, the City of Philadelphia should limit its actions to providing facilities to accommodate
voluntary homeless feedings and should resist becoming entangled in direct supervisory control
over the feedings.

2. Enforcement of Generally Applicable Licensing and Health Code Regulations
and Limiting Homeless Feedings to Designated Locations are Most Likely
Permissible Time, Place and Manner Restrictions on Conduct
The free exercise of speech, assembly and religion can be circumscribed by valid time place and
manner restrictions on conduct. To determine whether particular conduct possesses sufficient
communicative elements to bring the First Amendment into play, courts have traditionally asked
two questions: (1) whether the person seeking the First Amendment's protection intended to
convey a particularized message, and (2) whether the likelihood was great that the message
would be understood by those who viewed it. For a restriction on expressive conduct to be
constitutionally permissible it must be (1) content neutral, (2) narrowly tailored to serve a
significant governmental interest, and (3) leave open ample alternative channels for
communication.
Likewise, a statute which places a burden on religious practice is presumed valid so long as it is
(1) generally applicable; (2) facially neutral; and (3) does not discriminate on the basis of
religious beliefs or regulate conduct because it is undertaken for religious reasons. It is settled
law that the right to freely exercise religion does not relieve an individual of the obligation to
comply with a “valid and neutral law of general applicability” on the ground that the law
prohibits conduct that his religion requires.
Finally, the First Amendment permits the government to impose a permit requirement on
individuals who wish to engage in expressive activity on public property, such as public streets,
sidewalks, and parks. A permit scheme which controls the time, place, and manner of speech (1)
must be neutral to the content of the message, (2) must be narrowly tailored to serve a significant
governmental interest, and (3) must leave open ample alternatives for communication.
Application of the Philadelphia Code of Health to public feedings is most likely a valid time,
place and manner restriction on conduct. Although its application to homeless feedings may
implicate First Amendment rights, it is generally applicable, content neutral statute.
By placing quality control standards on private individuals who seek to distribute food to the
public, the application of the health code provisions to homeless feedings is sufficiently narrow
to achieve the City’s interest in protecting public health and safety.
In addition, designating specific locations to accommodate homeless feedings is sufficiently
tailored to its interests in reducing undesirable secondary effects caused by mass feedings in
public parks, while preserving ample alternative channels to conduct feedings of the homeless.

3. Restrictions on Conduct
The City’s enforcement of existing health code regulations to prevent the unregulated feeding of
homeless persons is most likely a constitutional restriction on conduct, not speech. The First
Amendment’s protection of speech “does not include all modes of communicating ideas through
conduct.” U.S. v. O’Brien, 391 U.S. 367, 376-77 (1968). For conduct to be deemed expressive,
and thus subject to First Amendment protection it must be “sufficiently imbued with elements of
communication…” Spence v. State of Washington, 418 U.S. 405, 409 (1974). Furthermore,
conduct is not presumptively expressive; the party invoking the First Amendment's protection
has the burden to prove that it applies. Clark v. Community for Creative Nonviolence, 468 U.S.
288 (1984).
The First Amendment only protects conduct which is “inherently expressive.” Texas v. Johnson,
491 U.S. 397, 404 (1989). Conduct is “inherently expressive,” when it is “overwhelmingly
apparent” to a reasonable observer that he is viewing a form of symbolic speech. See, Rumsfeld
v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47, 66 (2006). To determine
whether particular conduct possesses sufficient communicative elements to bring the First
Amendment into play, courts have traditionally asked two questions: (1) whether the person
seeking the First Amendment's protection intended to convey a particularized message, and (2)
whether the likelihood was great that the message would be understood by those who viewed it.
Johnson v. Texas, 491 U.S. 397, 404 (1989).
Litigation currently pending in the Eleventh Circuit is especially pertinent in determining
whether federal courts will strike down regulations which restrict a private individual’s right to
conduct homeless feedings in a public forum. 610 F.3d 1274 (11th Cir. 2010). In July of this
year (2010), the Eleventh Circuit Court of Appeals upheld an Orlando ordinance requiring
individuals to seek a permit before organizing large group feedings in public parks and on
adjacent city sidewalks. First Vagabonds Church of God v. City of Orlando , 610 F.3d 1274
(11th Cir. 2010). The ordinance was passed in response to complaints from local residents about
large numbers of homeless people disbursing from a public park into surrounding neighborhoods
after the feeding events. Id. at 1280. The statute defined a “large public feeding” as an “event
intended to attract, attracting, or likely to attract 25 or more people, including distributors and
servers” and limited applicants to two (2) permits per park per year. Id. A three judge panel held
that the Orlando ordinance does not violate the Free Speech Clause because large group feedings
do not qualify as “expressive conduct.” Id. at 1283. The Court determined that “the expressive
nature” of the conduct was not “overwhelmingly apparent” because a reasonable observer would
not likely interpret the “conduct of feeding people” to be “truly communicative.” Id. However,
on August 31, 2010, the Eleventh Circuit voted to vacate the opinion and reconvene en banc to
rehear the matter. 22 Fla. L. Weekly Fed. C 1406 (11th
Cir. 2010).
Here, public feedings are unlikely to rise to the level of “inherently expressive” conduct that
triggers the First Amendment. Publicly dispersing food is not an inherently communicative act.
Whether a charitable act of feeding a homeless person intentionally conveys a particularized
message that is “overwhelmingly apparent” to the reasonable observer is irrelevant in the context
of enforcing Philadelphia’s existing licensing and health code regulations. The conduct being

4. regulated is not the act of feeding homeless persons per se, but rather the public distribution of
uninspected food.
Philadelphia’s regulatory scheme is clearly distinguishable from the Orlando ordinance currently
being challenged in First Vagabonds Church of God. Unlike Orlando, the City of Philadelphia is
not creating legislation which is specifically targeted at circumscribing homeless feedings, but is
simply choosing to enforce existing health regulations which are generally applicable to any
individual who chooses to serve food to the general public. In addition, Philadelphia has not
created any additional burden for applicants who seek licenses to facilitate homeless feedings.
Restrictions on Expressive Conduct
Assuming arguendo that subjecting private individuals who feed the homeless to licensing and
health code regulations does infringe upon their First Amendment right to expression, it is settled
law that expressive conduct is subject to valid time, place, and manner restrictions. U.S. v.
O’Brien, 391 U.S. 367 (1968); Texas v. Johnson, 491 U.S. 397, 406 (1989); Hill v. Colorado,
530 U.S. 703 (2000). A time, place, and manner restriction on expressive conduct is
constitutionally valid so long as it is (1) content neutral, (2) narrowly tailored to serve a
significant governmental interest, and (3) leaves open ample alternative channels for
communication. U.S. v. O’Brien, 391 U.S. 367 (1968); see also, Clark v. Community for
Creative Nonviolence, 468 U.S. 288 (1984); Ward v. Rock Against Racism, 491 U.S. 781
(1989).
The government generally has more freedom in restricting expressive conduct than it has in
regulating oral or written speech, but it “may not proscribe particular conduct because it has
expressive elements.” Texas v. Johnson, 491 U.S. 397, 406 (1989). “[W]here ‘speech’ and
‘nonspeech’ elements are combined in the same course of conduct, a sufficiently important
governmental interest in regulating the nonspeech element can justify incidental limitations on
First Amendment freedoms” so long as the governmental interest is “unrelated to the
suppression of free expression.” U.S. v. O’Brien, 391 U.S. at 377. As such, a restriction on
expressive conduct cannot be targeted at suppressing disfavored speech or unpopular groups.
Texas v. Johnson, 491 U.S. 397 (1989).
A time place and manner restriction must be narrowly tailored to serve a significant
governmental interest. U.S. v. O’Brien, 391 U.S. 367 (1968); Clark v. Community for Creative
Nonviolence, 468 U.S. 288 (1984); Ward v. Rock Against Racism, 491 U.S. 781 (1989).
To be “narrowly tailored” a regulation must serve the need for which it was enacted. A
regulation cannot be sustained if it “ provides only ineffective or remote support for the
government's purpose, ” Central Hudson, 447 U.S. 557, 564 (1980), or if there is “little chance”
that the restriction will advance the State's goal. Greater New Orleans, 527 U.S. 173, 193 (1999);
see also Lorillard Tobacco Co. v. Reilly, 533 U.S. 535 (2001) (regulations banning commercial
advertisements of tobacco products not narrowly tailored to meet the state’s interest in protecting
the health of minors); City of Cincinnatti v. Discovery Network, Inc., 507 U.S. 410 (1193) (ban
on newsracks dispensing commercial handbills, but not those dispensing traditional newspapers
was not narrowly tailored to meet government’s interest in public safety and aesthetics).

5. The U.S. Supreme Court has held that significant governmental interests may include:
(1) a state protecting the health and safety of its citizens, Hill v. Colorado, 530 U.S. 703 (2000)
(state has a significant interest in protecting female patients from harassment by abortion
protestors)
(2) preventing “secondary effects” which cause a public nuisance, City of Renton v. Playtime
Theatres, 475 U.S. 41 (1986) (state has a significant interest in controlling “secondary effects” of
adult theatres on the surrounding community); and
(3) maintaining the aesthetics and accessibility of public parks, Clark, 468 U.S. 288 (1984)
(government has a significant interest in maintaining appearance and public accessibility to
national parks).
In Clark, a dispute arose over whether a federal regulation which prevented protestors from
sleeping in the park was an unconstitutional infringement upon their right to expressive conduct.
468 U.S. 288 (1984). The National Park Service issued a permit for protestors to organize a
demonstration in a federal park to call attention to the plight of the homeless. Id. at 292.
However, park regulations permitted camping only in designated areas. Id. The protestors argued
that sleeping in the park was meant to visually symbolize the dilemma of the homeless, and as
such was protected speech. Id., at 293. The U.S. Supreme Court disagreed, upholding the park
ordinance as a valid time, place, and manner restriction on expressive conduct. Id., at 299.
The Court concluded that the park regulation was (1) content neutral because the prohibition on
“camping” was applicable to the general public and did not specifically seek to censor the
message of the protestors; (2) was narrowly focused on the Government’s substantial interest of
maintaining the parks in an attractive condition and readily available for use by the general
public; and (3) left the protesters with ample alternative channels of communicating their
intended message concerning the homeless. Id. at 296.
Here the application of the City of Philadelphia’s health code regulations is most likely a
permissible time, place and manner restriction on expressive conduct. Enforcement of the health
code is content neutral because it is generally applicable to any person who desires to publicly
distribute food, regardless of their motives for doing so.
Health Code enforcement ensures that important public health and safety goals will be met by
(1) assuring that adequate quality control measures are undertaken before serving food to the
public, (2) identifying tainted or contaminated food before it is consumed by the public, and
(3) eliminating the potential public health risk posed by those persons who would negligently,
recklessly, or intentionally distribute spoiled food products.
The City also has a significant governmental interest in reducing the secondary effects of large
homeless feedings on surrounding communities. Homeless feedings in public parks create
nuisances which the state has a right to remedy such as public urination, litter control problems
and rodent control problems. The goal of reducing these secondary effects is accomplished by
the City’s proposed designated feeding sites whereby the city can control public urination by
providing adequate restroom facilities and can effectively manage litter and rodent problems
through trash disposal services.

6. Here, as in Clark, the city has a substantial interest in maintaining the parks in an attractive
condition and readily available for use by the general public. Homeless feedings tend to attract
large crowds which leave behind large quantities of paper, plastic products, and uneaten food.
This creates visual blight, attracts rodents and decreases the overall enjoyment of public
resources. Designated feeding sites are able to remedy these problems by ensuring that adequate
trash disposal measures are taken.
The availability of designated feeding sites also create ample, alternative channels to
accommodate homeless feedings. Multiple feeding sites, may actually work to encourage the
activity rather than stifle it. Furthermore, homeless advocacy through oral or written modes of
communication is left undisturbed.
Free Exercise of Religion
According to the U.S. Supreme Court, a statute which places a burden on religious practice is
presumed valid so long as it is (1) generally applicable; (2) facially neutral; and (3) does not
discriminate on the basis of religious beliefs or regulate conduct because it is undertaken for
religious reasons. Employment Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S.
872 (1990); affirmed by, Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S.
520, 532 (1993). The Court has explicitly stated: “We have never held that an individual's
religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct
that the State is free to regulate. On the contrary, the record of more than a century of our free
exercise jurisprudence contradicts that proposition.” Smith, 494 U.S. at 878-79.
The U.S. Supreme Court has consistently held that the right of free exercise does not relieve an
individual of the obligation to comply with a “valid and neutral law of general applicability on
the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or
proscribes).” Smith, 494 U.S. at 878; see also, Reynolds v. United States, 98 U.S. 145, 25 L.Ed.
244 (1878) (rejecting the claim that criminal laws against polygamy unconstitutionally burdened
those whose religion commanded the practice); Prince v. Massachusetts, 321 U.S. 158 (1944)
(holding that mother could be prosecuted under child labor laws for employing her children to
distribute religious literature); United States v. Lee, 455 U.S. 252 (1982) (rejecting the notion
that Amish merchants involved in commercial enterprises are exempted from social security
taxes due to their religious beliefs against participation in the program).
Here, the City of Philadelphia’s health code regulations are a valid burden on religious
expression because (1) they are generally applicable to all persons who desire to serve food to
the public and not specifically targeted towards religious organizations; (2) they are facially
neutral, in that they pertain to public health and safety, not religious conduct, and (3) the goal of
enforcement is to assure adequate quality control standards are met, not to restrict homeless
feedings because they are undertaken for religious purposes. As a result, the right of free exercise
does not relieve an individual of the obligation to comply with a “valid and neutral law of
general applicability on the ground that the law proscribes…conduct that his religion
prescribes...”

7. Permit Schemes
The first amendment permits the government to impose a permit requirement on individuals
wishing to engage in expressive activity on public property, such as public streets, sidewalks,
and parks. Cox v. New Hampshire, 319 U.S. 569, 574 (1941). Any permit scheme which controls
the time, place, and manner of speech (1) must be neutral to the content of the message, (2) must
be narrowly tailored to serve a significant governmental interest, and (3) must leave open ample
alternatives for communication. United States v. Grace, 461 U.S. 171, 177 (1983).
A permit scheme must be applied uniformly to pass constitutional muster. Permit schemes which
vest government decision-makers with uncontrolled discretion in deciding whether or not to
issue a particular permit have been routinely struck down as unconstitutionally hindering
expression. Freedman v. Maryland, 380 U.S. 51 (1965); see also, Heffron v. International
Society for Krishna Consciousness Inc., 452 U.S. 640, 649 (1981) (reasoning that permit
schemes which allow for arbitrary application are "...inherently inconsistent with a valid time,
place, and manner regulation because such discretion has the potential for becoming a means of
suppressing a particular point of view.")
Here, the City of Philadelphia’s health code regulatory scheme is a valid time, place and manner
restriction designed to ensure public health and safety. Its purpose is not to suppress expressive
communication, but to ensure that the public is not subjected to tainted or contaminated food.
The health code provisions should withstand constitutional scrutiny in their application so long
as the license approval process is not arbitrary or discriminatory against persons seeking
licensing to facilitate public homeless feedings.
The City of Philadelphia Will Most Likely Be Shielded From Municipal
Liability for the Actions of Private Individuals by Limiting its Activities to
Providing Adequate Accommodations for Homeless Feedings
The City of Philadelphia will most likely be shielded from municipal liability for the actions of
private individuals who conduct homeless feedings if it limits its response to providing
designated facilities to accommodate volunteers. For the actions of a private individual to be
transformed into state action, they must be fairly attributable to the state. Mere regulatory control
does not convert private initiatives into state action.
However, under the Compulsion Doctrine, the acts of private actors can trigger the Fourteenth
amendment whenever (1) a regulatory relationship exists between the government entity and the
private entity, and (2) the state exercises its coercive authority to induce the private entity to act.
Mere acquiescence to the policies of a private entity does not translate into state action, however
indirect regulation which amounts to compulsion does.
Therefore, the City can reduce its liability by limiting its involvement in the homeless feedings to
providing adequate facilities and ensuring that the facility’s rules are respected. Increased
supervisory control will only increase the risk of incurring liability for the personal conduct of
the volunteers.

8. In determining whether private action can be transformed into state action the principal inquiry is
whether the alleged conduct is fairly attributable to the State. Lugar v. Edmondson Oil Co., 457
U.S. 922, 937 (1982). It is well established that “[t]he mere fact that a business is subject to state
regulation does not by itself convert its action into that of the State for purposes of the
Fourteenth Amendment.” Jackson v. Metropolitan Edison Co., 419 U.S. 345, 350 (1974).
However, under the Compulsion Doctrine articulated in Blum v. Yaretsky, whenever the state
significantly influences a private decision through coercive inducements or incentives to behave
in a specified way, the state may be held accountable for the private decision. 457 U.S. 991, 1004
(1982).
In Blum, the Court considered whether certain nursing homes were state actors for the
purpose of determining whether decisions regarding transfers of patients could be fairly
attributed to the State, and hence be subjected to Fourteenth Amendment due process
requirements. 457 U.S. 991 (1982). The nursing homes were privately owned and operated but
were subject to state Medicare regulations. Id. at 1003. The challenged transfers primarily
involved decisions, made by physicians and nursing home administrators, to move patients from
“skilled nursing facilities” to less expensive “health related facilities.” Id. at 1005. the Court held
that, “a State normally can be held responsible for a private decision only when it has exercised
coercive power or has provided such significant encouragement, either overt or covert, that the
choice must in law be deemed to be that of the State.” Id. at 1004 (relying on, Flagg Brothers,
Inc. v. Brooks, 436 U.S. 149 (1978); Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974);
Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972); and Adickes v. S. H. Kress Co., 398 U.S.
144 (1970)). The Court went on to clarify that “[m]ere approval of or acquiescence in the
initiatives of a private party is not sufficient to justify holding the State responsible for those
initiatives under the terms of the Fourteenth Amendment.” Id. at 1004-1005. The Court
ultimately determined that the transfer decisions were the result of private decisions made by the
treating physicians, and therefore not attributable to the state.
The Court addressed the same issue in Rendell-Baker v. Kohn, when a teacher employed by a
private school asserted a First Amendment claim under § 1983 after being discharged for
disagreeing with a school board member over policy decisions. 457 U.S. 830 (1982). At the time,
public funding accounted for 90% of the schools operating budget, which included the grant that
provided for the teacher’s employment. Id. at 832. As a result, the teacher asserted that the
school’s conduct amounted to state action. Id. The Supreme Court disagreed, holding that the
regulatory relationship between the school and the state was too attenuated to fairly attribute the
termination decision to the state. Id. at 840-42. However, the Court reaffirmed its position that if
the state had significantly influenced the decision through indirect regulatory control it would
amount to state action. Id. at 842.
Both Blum and Rendell-Baker leave open the question of how much regulatory control is
necessary to transform private action into state action. While mere approval or acquiescence to
private conduct does not trigger liability, indirect regulatory control which amounts to
compulsion does. Blum, 457 U.S. at 1004-1005.

9. In the context of the City’s current proposal to designate specific feeding locations, Blum and
Rendell-Baker stand for the proposition that increased supervisory control equates into increased
risk of incurring § 1983 liability for the acts of private individuals. As such, the City’s
supervisory control should be limited to providing adequate facilities to accommodate the
feedings and ensuring that the facilities rules are respected. The City’s participation in the
employment, procedural, or planning decisions of the private organizations conducting the
feedings should be discouraged to avoid incurring liability. In addition, on-duty public
employees should be strictly prohibited from direct participation in food distribution activities.
Conclusion
Philadelphia’s application of existing licensing and health code requirements to persons who are
currently conducting unmonitored homeless feedings will most likely survive a constitutional
challenge so long as they are (1) generally applicable to all individuals who seek to serve food to
the public; (2) reasonably capable of achieving the City’s asserted interest in promoting public
health and safety, reducing secondary effects/public nuisances, and maintaining the aesthetics
and accessibility to public parks; (3) ample alternative channels are available for charitable
associations to organize homeless feedings; and (4) the licensing application process is not
arbitrary or discriminatory.
To be reasonably capable of achieving the City’s stated goals the City must provide for health
code inspections at homeless feeding sites to legitimize its position that adequate quality control
measures are necessary to ensure public health and safety. Likewise, the City will also need to
show that designating feeding sites will reduce the secondary effects which the city asserts create
a public nuisance. For instance: If the city asserts that large group feedings contribute to (1)
public urination, (2) excessive littering, and (3) rodent control issues caused by the improper
disposal of leftover food, Then the city should (1) ensure adequate bathroom facilities are
available at the designated homeless feeding sites, (2) provide adequate trash receptacles at the
public feeding sites, and (3) provide adequate trash removal services at the public feeding sites.
In addition, the city must ensure that the license approval process is not arbitrary or unfairly
prejudicial against persons seeking licenses to facilitate homeless feedings. Ideally, a permit
scheme should include:
(1) A written description of the permit/license application process
(2) Comprehensive and unambiguous standards for implementation and the objective criteria
officials will use in determining whether to grant or deny a permit application
(3) A time frame for the application process and for decision makers to consider an application
(4) A provision for notifying the applicant that a permit request has been denied and the reasons
for the denial
(5) An established route to appeal a denial of an application
(6) Language that avoids inherently vague terms, the meaning of which are not self-evident or
easily discernible, such as "first amendment activities," "special or unique circumstances,"
"unique hardship," "public nuisance," or "detrimental to public health and safety,” and
(7) The identity of the person or persons with the authority to grant or deny a permit request.

10. With regards to the proposed feeding sites, the City of Philadelphia can shield itself from liability
for the actions of the private volunteers if it limits its response to providing designated facilities
to accommodate the feedings. Mere regulatory control does not convert private initiatives into
state action. However, because a regulatory relationship does exist between the City and the
volunteers, acts of the private volunteers can trigger the Fourteenth amendment if the city
directly regulates the action in question, or by indirectly inducing the action through regulatory
incentives. Mere acquiescence to the actions of a private entity does not translate into state
action, however indirect regulation which amounts to compulsion does.
Direct supervisory control over the private entities who conduct homeless feedings has the
potential to create § 1983 liability for their actions. As such, regulatory control should be limited
to providing adequate facilities to accommodate the feedings and ensuring that the facilities rules
are respected. The City’s participation in the employment, procedural, or planning decisions of
the private organizations conducting the feedings should be discouraged to avoid incurring
liability. In addition, on-duty public employees should be instructed to avoid direct participation
in food distribution activities.